In its latest annual report, the MSPB summarized what it views as the key changes enacted in fiscal year 2017 in federal personnel law.
“National Defense Authorization Act (NDAA) of 2017. Enacted on December 23, 2016, this statute contains several provisions that affect MSPB jurisdiction. One provision grants MSPB appeal rights to dual status military technicians when the appeal concerns certain activities (e.g., reductions is force (RIFs), adverse actions, and other unspecified activities) that occurred when the technician was not in military pay status and when the issue does not involve fitness for duty in the reserve component. Another provision grants MSPB appeal rights to a former employee to challenge an agency’s decision to place a notation of an adverse investigative or administrative finding in his or her official personnel file. The NDAA also made changes to the definitions and limits of administrative leave applicable to all federal employees. The law also repeals the waiver of the 180-day waiting period after retirement before retired members of the armed forces may be appointed to DoD civilian positions.
“Follow the Rules Act. This amends 5 U.S.C. § 2302 to expand the prohibited personnel practice established in 2302(b)(9)(D) (the so-called “right to disobey” provision) to include the right to disobey orders that violate rules and regulations (as opposed to only statutes). This effectively overrules the U.S. Court of Appeals for the Federal Circuit’s decision in Rainey v. MSPB, 824 F.3d 1359 (Fed. Cir. 2016), which held, based on the canons of statutory construction, that a federal employee has no right to disobey an order he or she believes violates a federal regulation.
“Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. This bill eliminates MSPB appeal rights for Senior Executive Service (SES) employees of the Department of Veterans Affairs (VA) who have been suspended, demoted, or removed from Federal service for performance or misconduct. The bill retains MSPB appeal rights for non-SES employees under an expedited review process. MSPB AJs are required to issue decisions within 180 days after the appeal is filed. The AJ’s decision may be appealed to the three-member Board. The bill does not limit the amount of time the Board may take to issue a decision. The Board’s decision may be appealed to the U.S. Court of Appeals for the Federal Circuit.
“Authority to provide for extensions of OSC stay requests under 5 U.S.C. § 1214 when MSPB lacks a quorum or Board members. The legislation provides authorization, in the event that MSPB lacks a quorum, for any remaining member of the Board who has been confirmed by the Senate, to grant an extension of a stay of a personnel action upon request by OSC.
“The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. This law creates a 14th PPP [prohibited personnel practice] prohibiting access to medical records of another employee or an applicant for employment as a part of, or otherwise in furtherance of, any conduct described in PPPs 1 through 13. In addition, this law (1) requires agency heads to propose disciplinary action against supervisors who have engaged in whistleblower retaliation, (2) provides certain whistleblower protections to probationary federal employees, (3) provides guidelines to enhance federal employee awareness of federal whistleblower protections, and (4) enhances access of information by the OSC.”